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Next Steps in Online Courts: Accelerating Access To Justice Through Court Technology
No full textFor more than a decade, state courts have been expanding access to justice by adopting online dispute resolution (ODR) platforms and other outward-facing communication technologies. At a deep level, these reforms aim at improving society by bolstering the rule of law. At a surface level, these innovations recognize that the justice system works better when courts and law are easier and less costly to understand and use. In important respects, these efforts have been a success. The accessibility of many state courts is considerably more robust today than it was ten years ago, at least for small-stakes cases, like traffic disputes and small claims lawsuits. Yet the pace of innovation - at least in the eyes of some - has been sluggish and episodic. Courts to date have stuck to the comfortable shallows with their ideas, designing technology, for example, to facilitate private dispute resolution rather than incorporating technology into the adjudication process itself In this article, I argue that state courts are beginning to swim beyond the breakers, and I offer Alaska as a case in point. Building on its years of experience using technology to mitigate unique geographic and demographic barriers and armed with the lessons on display in other states, Alaska is innovating. It is still early, and Alaska\u27s approach to ODR has important limitations. Nevertheless, the state\u27s vision for its courts crosses new waters not only by soon making formal adjudication more accessible through asynchronous text-based proceedings but also by incorporating simple, thoughtful refinements to existing designs and by creating opportunities to leverage out-of-state resources
The Macroprudential Myth
No full textAccording to conventional wisdom, the 2008 fnancial crisis fundamen- tally changed how policymakers approach fnancial regulation. Before the crisis, regulators sought to prevent individual fnancial institutions from collapsing, but this “microprudential” strategy proved inadequate to stop the market-wide meltdown. In response, policymakers purportedly turned to a new “macroprudential” approach that prioritizes the stability of the fnancial system as a whole instead of individual institutions in isolation. Regulators in the United States and abroad enthusiastically embraced macroprudential policy, implementing stress tests, capital buffers, liquidity requirements, and other supposed macroprudential tools. As the United States’ top bank regulator declared in 2015, “[W]e are all macroprudentialists now.”
There is just one problem, though, with using the term “macropruden- tial” to describe modern fnancial regulation: it is a myth. Despite the macroprudential label, the prevailing regulatory framework is still pre- dominantly microprudential in nature. Although some post-2008 policy innovations nudged fnancial oversight in a macroprudential direction, the dominant tools fnancial regulators use today are just supersized versions of the microprudential approaches that have existed for deca- des. This shortcoming has serious economic consequences. As recur- ring fnancial disruptions—including the panic following Silicon Valley Bank’s failure—have vividly demonstrated, microprudential regulation is prone to overlooking interconnections and other systemic vulnerabil- ities. Accordingly, this Article proposes a roadmap to reorient the regula- tory framework toward the macroprudential approach that the modern fnancial system demands
Responding to Alternatives
Get PDFThis Article is the first to comprehensively analyze administrative agencies’ obligation to respond to alternatives to their chosen course of action. The obligation has been around at least since the Supreme Court’s decision in Motor Vehicle Manufacturers Ass’n of the United States, Inc. v. State Farm, and it has mattered in important cases. Most recently, the Supreme Court invoked the obligation as the primary ground on which to invalidate the Trump Administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program. The obligation to respond to alternatives is also frequently invoked in the lower courts and in the D.C. Circuit in particular. But courts lack a consistent framework for analyzing the obligation, providing agencies with little guidance regarding which alternatives require analysis as part of their decisionmaking process. And to the extent that the obligation allows courts a backdoor opportunity to flyspeck agencies’ policy analysis, it runs the risk of displacing agencies’ expert judgments for the courts’ own, often informed only by the parties’ briefing.
This Article interrogates the obligation to respond to alternatives and proposes a more stable framework for its implementation. After rooting the obligation in agencies’ general obligation to give reasons for their actions and in the values associated with agency reason-giving, the Article turns to two questions. First, to which alternatives must agencies respond? And second, what counts as a response? In answering these questions, the Article draws on broader goals associated with administrative law, which include not only promoting the values associated with reason-giving but also respecting the need for agencies to perform their tasks effectively and within a relatively stable system of judicial review that recognizes their comparative expertise advantage over the courts. In addition, it seeks to develop a framework that fits with and helps to explain the results in most cases invoking the obligation to respond to alternatives. At the same time, the framework allows us to more clearly identify occasions where courts have reached incorrect results or been overbroad in their framing of the obligation to respond to alternatives
In Citizenship We Trust? The Citizenship Question Need Not Impede Puerto Rican Decolonization
Get PDFPuerto Rico is an uncomfortable reminder of the democratic deficits within the world’s oldest constitutional democracy. Puerto Ricans are U.S. citizens who live in a U.S. territory that is subject to the plenary authority of Congress, to which they cannot elect voting members. In 2022, under unified Democratic control for the first time in a decade, Congress considered the Puerto Rico Status Act, legislation that would finally decolonize Puerto Rico. The Status Act offered Puerto Rican voters three alternatives to the colonial status quo—statehood, independence, or sovereignty in free association—and committed Congress to implementing whichever alternative won majority support from Puerto Rican voters.
The Status Act sought to define how any change in status would affect Puerto Ricans’ access to U.S. citizenship. The Status Act proposed that all Puerto Ricans would retain their U.S. citizenship if Puerto Rico became independent or entered free association but included special restrictions that would limit Puerto Ricans’ ability to pass on their U.S. citizenship to children born after a change in status. While this Note appreciates the Status Act’s efforts to decolonize Puerto Rico, it argues that the Status Act erred in proposing this specialized regime for citizenship claims. Instead, it contends that the existing derivative citizenship framework would better regulate citizenship for Puerto Rican U.S. citizens born after a change in status.
Although the Status Act died in the Senate, it represents a new and influential formula for decolonizing Puerto Rico. Future proponents of status reform should draw on the existing derivative citizenship law because it offers clearer provisions that can better ensure a large number of Puerto Ricans may rely on U.S. citizenship—a benefit Puerto Ricans themselves clearly value—even after a change in status
Innovation Originators
Get PDFAsian Americans are one of the most striking and undertheorized ethnic groups in the field of innovation. While a prolific ethnic group when it comes to being named as inventors on U.S. patents, very little has been written on this observation, perhaps because of previously limited datasets and unwieldy data analysis on ethnic backgrounds about patenting at the United States Patent & Trademark Office (USPTO). Research on inventor diversity and ethnicity in innovation has begun to explore some ethnic groups, but a more holistic account should focus on one particular overlooked group. Recently, entrepreneurship studies concerning ethnicity have shown that Asian Americans represent a relatively small percentage of technology startup founders, and while those studies have focused on comparing White, Black, and Latinx founders, more granular attention is necessary for Asian American founders.
In this Article, we describe and analyze why Asian Americans are overrepresented as inventors on U.S. patents and underrepresented as technology startup founders relative to other ethnic groups. We examine the link between inventors and entrepreneurs based on ethnicity (focusing on Asian Americans); draw normative implications for immigration law, venture capital law, and patent law; and provide proposals and economic insights for the USPTO and U.S. innovation policy. We utilize computational surname and artificial intelligence (AI) methods to determine statistics of Asian Americans and Asians named on U.S. patents and U.S. startup formation documents. We demonstrate that, contrary to widely held assumptions, the combination of Asian Americans and Asians (not Whites) is the current largest percentage represented as inventors on U.S. patents. We hypothesize and draw implications as to why, relative to other ethnic groups, Asian Americans are less likely to become founders of startups than inventors on U.S. patents based on cultural and psychological characteristics, educational backgrounds, and immigration. We argue that innovation policy should more fully consider the contributions of Asian Americans, and we identify ways for the USPTO and policymakers to foster entrepreneurship from Asian American inventors
Constructing Confrontation: Between Constitutional and Evidence Theory
Get PDFThe United States Supreme Court’s decision in Crawford v. Washington was significant as a matter of both constitutional and evidence law. From a constitutional perspective, the opinion was significant because of its “original public meaning” approach to interpreting the text of the Sixth Amendment’s Confrontation Clause. From an evidentiary perspective, the opinion was significant in recognizing a doctrinal rule that potentially excludes evidence in criminal trials that would otherwise be admissible under the Federal Rules of Evidence as well as State evidence laws. This Essay explores Crawford and the subsequent Confrontation Clause cases from these distinct perspectives—illuminated by constitutional and evidence theory—and the relationships between them. The interpretation-construction distinction in constitutional theory provides a useful analytical tool for understanding the Crawford line of cases. It also helps to clarify the different ways in which the normative values of evidence theory— which may be used to explain, evaluate, justify, or critique evidence rules more generally—interact with the Court’s decision-making and the confrontation doctrine it has constructed. The Essay concludes by exploring how these distinct perspectives may interact to determine future confrontation doctrine
Forfeiture by Wrongdoing in Domestic Homicide Cases: Where Are We Now?
Get PDFOne of the few common law exceptions to the rule that every criminal defendant enjoys the right to “be confronted with the witnesses against him” is if the defendant has deliberately caused a witness’s unavailability. That a defendant could forfeit his confrontation rights through his own wrongdoing developed from the equitable concept that “no man shall profit from his wrong.” When the Supreme Court narrowed the common law doctrine of forfeiture by wrongdoing in Giles v. California, it seemed like it had dealt a serious blow to the prosecution of domestic homicide cases. Rather than being able to introduce a murdered victim’s out-of-court statements if it could be shown that the defendant had intentionally caused her absence, the Court now required a showing that the defendant caused the victim’s unavailability as a witness with the specific intent of preventing her from testifying. In an earlier article, I argued that this ruling would only affect domestic violence cases. Forfeiture arguments come up in homicide trials when a murder victim has made previous testimonial statements about the defendant. This issue arises in only two circumstances: when the victim has witnessed another crime committed by the defendant, or when the victim is subject to domestic abuse at the hands of the defendant. In cases of witness intimidation or elimination, there is no difficulty in making the showing of intent to prevent them from testifying, because there’s rarely another reason for the murder
Don\u27t call it \u27privacy\u27: data protection, from ideas to constitutional law
Get PDFData protection law has been subject to various criticisms, among which is one of a fundamental kind: devoted to procedures, it lost sight of its privacy-bound origins. This dissertation aims to provide a novel historical and comparative account of the transatlantic development of data protection law, from the origins to this day, identifying how it may yet succeed in reaching the policy goals its original proponents imagined, and untangling key legal concepts along the way.
The regulatory concept of data protection was founded on three basic principles: purpose limitation, universality, and institutional supervision and enforcement. These three principles trace their own roots to the justification principle.
Originally, data protection was designed to work without privacy. As this dissertation shows, it indeed did, at the statutory level. At the constitutional level, data protection had to contend with privacy. As this dissertation’s transatlantic comparative exercise demonstrates, privacy proved to be a conceptual hindrance to the development of data protection on the constitutional plane.
The Court of Justice of the European Union (CJEU) developed a unique data protection doctrine, fully independent from privacy, elevating the three principles of data protection to the constitutional level. This was an unexpected outcome, from which the CJEU walked back somewhat in the 2024 Quadrature du Net II decision. Still, the CJEU’s doctrine demonstrates that the independence of constitutional data protection from privacy is both possible and fruitful. In that regard, the transatlantic convergence away from data protection and towards a privacy-infused notion of profiling is concerning
Building the Gateway: Why the Two Pillars Need Each Other
Get PDFThere is a reason the OECD proposed two pillars for its gateway to a better tax future. A gateway requires both pillars, and neither can stand without the other. Pillar 2 is a fait accompli, but it needs countries to implement Pillar 1 as well. Pillar 1 is not going forward in the absence of a Multilateral Tax Convention, but it can be implemented unilaterally, although that would require overriding existing tax treaties
Public Accommodations Parlance
Get PDFAnxieties linger in the interstices of public accommodations law. 303 Creative LLC v. Elenis is the latest in a string of First Amendment cases that call into question the common law duties underpinning public accommodations doctrine. Many commentators have speculated about the decision’s immediate implications. But criticism of the decision is incomplete. This Note takes 303 Creative as a welcome opportunity to reevaluate basic assumptions about how property law operates in relation to constitutional norms. Beginning with the provocative assertion that no legal axiom is infallible, this Note examines permutations of public accommodations and First Amendment law as rhetorical threads in a complex web of doctrinal analysis. Though 303 Creative is good law, it is still important to isolate and analyze these threads. This Note seeks to orient future discourse about how they are—or should be—woven together